District court still rejects contribution/contributory false advertising for supplier

Nestlé Purina Petcare Co. v. Blue Buffalo Co., No. 4:14 CV
859, 2016 WL 1579195 (E.D. Mo. Apr. 19, 2016)


ruling on ad agency’s potential liability for helping create allegedly false
.  Blue Buffalo also sought
contribution from Wilbur-Ellis, one of its suppliers (since the ads involved
claims about the contents of Blue Buffalo’s pet food).  “For a right to contribution to exist under
Missouri law, defendants must be jointly and severally liable to the plaintiff
for the same indivisible harm.”  However,
Blue Buffalo didn’t sufficiently allege that Wilbur-Ellis was potentially
liable to Purina for the same, indivisible injury it is alleged to have caused.
Rather, Blue Buffalo alleged that it lost customer goodwill and paid above
market-price for the by-product meal it bought from Wilbur-Ellis, and that it
was exposed by Wilbur-Ellis’s conduct to liability in this case and others.


Purina alleged that Blue Buffalo harmed Purina by
disparaging its pet food and making false claims about Blue Buffalo’s own pet
food. Although Duty Free Americas, Inc. v. Estee Lauder Cos., 797 F.3d 1248 (11th
Cir. 2015), held that a claim of contributory false advertising could be
maintained under the Lanham Act, the plaintiff has to show that the relevant defendant
“contributed to that conduct either by knowingly inducing or causing the
conduct, or by materially participating in it.”   The court had previously concluded that there
was no federal common law right to contribution under the Lanham Act, nor is
there an express right of contribution under the Lanham Act.  “While the Eleventh Circuit’s reasoning in
support of recognizing a right to contributory false advertising is sound, it
is not persuasive enough to compel me to reconsider my previous ruling or to
reject the line of cases holding that no such right exists.”


Thus, Blue Buffalo’s only hope was to seek contribution from
Wilbur-Ellis based on Purina’s unjust enrichment claim. But there was no
allegation that Purina conferred a benefit on Wilbur-Ellis. Purina’s claim for
unjust enrichment alleged that it conferred a benefit on Blue Buffalo: Blue Buffalo’s
profits from sales to consumers who chose it because of the false
advertising.  (Still don’t see how that’s
Purina conferring a benefit on Blue Buffalo.) 
Purina’s injuries from this unjust enrichment aren’t the same as the
injuries Wilbur-Ellis allegedly caused, and Purina couldn’t have sued
Wilbur-Ellis.  “As a supplier,
Wilbur-Ellis could not be found liable for Purina’s claims that Blue Buffalo
knowingly and in bad faith engaged in false advertising or that it made false
comparative statements.”


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